Monday, August 23, 2010

Judge Vaughn Walker's Decision about California Proposition 8

I recently read all 136 pages of Judge Vaughn R. Walker's decision in which he found that California's Proposition 8 is unconstitutional. Prop 8, enacted by a 52 to 48 percent margin in 2008 consists of 14 words: "Only marriage between a man and a woman is valid or recognized in California."

Judge Walker was nominated to the court by President Reagan in 1987. Ironically, his nomination stalled in the Senate Judiciary Committee. Because he had represented the U.S. Olympic Committee in its suit of the proposed "Gay Olympics" over use of the Olympic name, Walker was regarded as "insensitive to gays." President George H.W. Bush renominated him to the Federal District Court in Northern California in 1989, and he was unanimously confirmed.

Judge Walker's opinion made me proud of the U.S. Here is the gist of his extended analysis:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed...

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages...

The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs...

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate...

The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples...“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

...Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

Two of my good friends in high school killed themselves in their 20s. Despair and shame about their sexuality was a major factor in their deaths. A college friend who spent several painful years trying to turn himself into a heterosexual described how at our 25th reunion he went to a dance sponsored by the gay and lesbian student association. Seeing gay and lesbian couples dancing together made him cry for the time he had wasted in the closet. One of my best friends in medical school was a closeted gay man. I can remember his terror that if he was "found out" his medical career would be ruined before it started. And in my psychiatry residency (in the mid 1960s) we were taught that if a gay or lesbian patient did not want to work on changing their sexual orientation there was no point in undertaking psychotherapy!

I found Judge Walker's opinion inspiring - not because of soaring rhetoric (there isn't much) - but because of the systematic way in which he considers the factual basis for prohibiting same sex couples to marry. He finds the arguments on behalf of prohibition lack any plausible basis in fact, and concludes that Prop 8 is based on the kind of faulty moral outlook that contributed to the deaths of my high school friends, that terrified my friend in medical school, and that I encountered in the teaching we received in residency.

I hope that over time Judge Walker's decision proves to be the final stake in the heart of our malignant history of anti-homosexual social prejudice.